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Legal Memorandum: Intermittent Leave under FMLA

Issue: Under federal labor law and the laws applying the Family and Medical Leave Acts, in order to qualify for intermittent leave, what must an employee do to comply with the requirements of 29 C.F.R. 825.208(e)(1)?

Area of Law: Employee Law
Keywords: Intermittent leave; Family and Medical Leave Act (FMLA); Notice
Jurisdiction: Federal
Cited Cases: 11 F. Supp. 2d 676
Cited Statutes: 29 C.F.R. § 825.208(e)(1); 29 U.S.C. § 2612(a)(1)(D); 29 C.F.R. § 825.203(a);
Date: 03/01/2004

Federal regulations, codified at 29 C.F.R. § 825.208(e)(1), state that in the context of the employer’s retroactive designation of leave as FMLA leave, the employee who wants leave to be designated as FMLA leave should give the employer notice within two business days of his or her return to work.  29 C.F.R. § 825.208(e)(1).  The regulation is inapplicable to a situation in which the employer knows of the FMLA reason.

Moreover, intermittent leave is allowed by the FMLA.  29 U.S.C. § 2612(a)(1)(D); 29 C.F.R. § 825.203(a); Jennings v. Mid-Am. Energy Co., 282 F. Supp. 2d 954, 960 (S.D. Iowa 2003); accord Barron v. Runyon, 11 F. Supp. 2d 676, 679 (E.D. Va. 1998).  Section 825.203(a) of the Code of Federal Regulations defines intermittent leave as “FMLA leave taken in separate blocks of time due to a single qualifying reason.”  29 C.F.R. § 825.203(a).  “[A]s long as the separate absences are taken for the same medical condition, they are all part of one intermittent leave period.”  Barron, 11 F. Supp. 2d at 681.

In Barron v. Runyon, 11 F. Supp. 2d 676, the defendant argued that each of the plaintiff’s absences after February 19—the first day he took leave to care for his wife—”constituted a separate period of leave, and that plaintiff was required to reestablish his eligibility before each such absence.”  Id. at 680.  In contrast, the plaintiff argued that the absences, all taken in the same 12-month period, “pursuant to […]

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